Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Friday, October 23, 2015

I am not partisan. I was a public
servant for about a dozen years. I was in the public service during the end of
the Pierre Trudeau era, the Brian Mulroney era and early Jean Chrétien period.
I’ve observed much since then and appeared several times at Parliamentary and
Senate Committee hearings. I’ve fought and won some victories in some important
cases up to and including at the Supreme Court of Canada. There are
many IP, trade and cultural issues that I care a lot about and which are or
should be non-partisan. So, I hereby offer my free, unsolicited and non-partisan advice on
some of them – for what it’s worth – to Canada’s new Prime Minister-designate
and Government:

- Re the TPP,
there should be very open and adequate committee hearings as soon as possible
to support a fully informed debate in Parliament. Many committees will need to
look at this. The proposed agreement - which is sadly still secret – apparently
has huge implications for the auto, agriculture, pharma, health, high tech,
academic and innovation based sectors – for starters. It may have enormous
implications for the rule of law and national sovereignty if it allows foreign
corporate “investors” to effectively limit or even undo Canada’s right to
regulate in many areas. It may even allow them to effectively overturn the
outcome of decisions of our highest courts including the Supreme Court of
Canada, which are among the finest courts and most respected courts anywhere in
the world. The TPP needs all the scrutiny and all the time we can give it. It’s
not likely going anywhere fast, based upon what we have heard from Hillary
Clinton and President Obama’s situation in the USA. There could very
well be an opportunity to reopen it and to more strongly assert Canada’s best
interests, if necessary. The complete shroud on public transparency in the
negotiations - which was not the case with the historic WTO Uruguay agreement
in 1994 or many other treaties, such as those from WIPO - has understandably
created suspicion and scepticism.

- Regarding
intellectual property and free trade, don’t assume that higher levels of IP
make for freer trade. The evidence suggests otherwise, unless one is dealing
with rogue or pirate nations that have not even ratified or which flout the
basic WIPO and WTO-TRIPs treaties. There are few if any such places
left and none of our significant trading partners could be remotely so
described. Don’t take my word for this. Read what Nobel Prize
winner Joseph Stiglitz recently had to say about the “Trans-Pacific Free Trade
Charade”.

- Get Canada
back into business in a visible and meaningful manner at the World Intellectual
Property Organization (“WIPO”), the WTO and other international multilateral
fora. It is unfortunate that we have become largely silenced in this respect
over the last decade and even more. We have much to contribute through our
capable public service delegates and it can only help Canadians if we do so.
Canada can also much to help other countries and should consider resuming its
role as “honest broker” in international fora.

- Fix the
problems at the Copyright Board, which takes too long to render
decisions that are too retroactive, too costly and sometimes just simply wrong.
This will almost certainly require regulations. The fault, if there is any
fault to be found, may lie more with the parties and their lawyers than the Board.
But the Board has, despite its competence, dedication and good intentions,
proven unable or unwilling to deal with these problems and to confront the
perennial parties and the small cadre of counsel who have done well under the
status quo and who don’t want to see any meaningful change. Regulations are the
answer. Virtually all other comparable Canadian tribunals and courts operate
under clearly enacted rules that set out timelines, procedures,
etc. Establishing such rules through regulations is relatively easy
– because regulations don’t require legislation. They just require hard
analysis and serious consultation. We do not need further statistical study, especially
when the Board only renders two or three significant substantive decisions a
year. I’ve written about this a lot.

- Fix the CBC.
Start with a new Board of Directors chosen for their knowledge and ability and
not on the basis of partisan considerations. Get a new President ASAP who is
committed to running the CBC according to its historical and legislated mandate
and bringing in more capable senior management. Running the CBC does
not mean running it into the ground. Listen to voices who
can provide non-partisan wisdom,such as Tony Manera – a highly principled and highly respected former president. The CBC is an indispensable part of
Canada. Bring it back to life and let it flourish. It was once a national
treasure admired around the world. This can happen again.

- Use your
elected talent pool wisely. You have knowledgeable and experienced people who
could contribute in cabinet on issues such as the above. Chystia
Freeland comes to mind on international trade. David Lametti is certainly the first and
foremost intellectual property law expert elected as an MP in Canada in modern
times and probably since Confederation. He has been a distinguished full
professor of law at McGill and could make a great contribution in several places,
such as Justice, Industry or Heritage. (I should disclose that I represented
his McGill institute and worked with him and Prof. Ariel Katz of U of T in
a recent Supreme Court copyright case, for which
the copyright community is eagerly awaiting the result).

- Use your
bureaucrats wisely. Many of them are very capable. The system should encourage
expertise and experience in IP on the part of senior levels in the bureaucracy,
which has rarely been the case in Canada – in notable contrast to the USA.

The previous government did do some
good work on copyright. The 2012 legislation was reasonably well balanced. The
decision to get rid of the proposed “new tax on iPods and MP3 players”, an idea that then
Industry Minister James Moore called "really toxic and, frankly, really dumb” through
regulation was a clear, decisive and an important step (I admit to involvement
on this file). Resist the likely attempt to reverse this positive step.
However, the sudden windfall copyright term extension for sound recordings in
the recent omnibus budget bill was unfortunate. The leaked IP chapter of the
TPP seems to indicate that Canada “caved” on
key issues, as Michael Geist explains. But, as noted above, hopefully that
damage, if is confirmed, can still be repaired.

IP should not be a partisan issue. IP costs are
overwhelmingly paid for by the “middle class” who buy gadgets, pay cable bills,
go to the movies, pay for their kids expensive tuition, pay taxes for
education, use prescription drugs, consume brand name food and beverages, wear
brand name fashion and pay out in countless other ways. Good IP policy is
essential to an innovative, independent and competitive Canadian economy. IP is
everywhere and that’s why the lobbying is so intense on these files.

Free trade. copyright and the CBC should not be partisan
issues. These are issues that should be dealt with on the basis of evidence,
analysis and what’s best for Canada.

Mr. Prime Minister-designate, I wish you all the
best in your dealing with these and the many other complex issues before you.
You have a great elected team and a great public service to help the Government
you will lead to undertake these challenges.